Robert John Williams v. Mary Elizabeth (Williams) Evans

• Court: Court of Appeals of Tennessee
• Decided: March 1, 1996
• Docket: 03A01-9511-CV-00400
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION AT KNOXVILLE FILED March 1, 1996 ROBERT JOHN WILLIAMS, ) Cecil Crowson, Jr. ) BLOUNT CIRCUIT Appellate C ourt Clerk Plaintiff/Appellee ) v. ) NO. 03A01-9511-CV-00400 ) MARY ELIZABETH (WILLIAMS) ) EVANS, ) ) REVERSED and Defendant/Appellant ) REMANDED

Judy Winegar Goans, Clinton, Attorney for the Appellant

Mark Silvey, Knoxville, Attorney for the Appellee

OPINION

INMAN, Senior Judge

The appellant sought an award of attorney fees of $31,205.48 and filed an

affidavit in explanation of the hours her attorney had expended in this case, which

involved the custody and support of one child.

The appellee made no response other than filing a proposed finding of fact

pursuant to invitation extended.

The trial judge awarded a fee of $1,250.00, stating:

Counsel for the Respondent has charged her client $31,205.48 for fees and expenses in connection with her representation in this matter. At an hourly rate of $100.00 per hour, these charges constitute 301.4 hours of time devoted to the case by the attorney. The Court is of the opinion and finds that charges totaling $31,205.48 are exorbitant and do not conform to the usual and ordinary time devoted to like cases by the vast majority of the attorneys who practice at this bar. The Court specifically finds that such charges do not constitute reasonable fees incurred in any suit or action concerning the adjudication of the custody or the change of custody of any child.

The appellant complains of the meagerness of the fee, alleging that it was

necessarily arbitrative.

TENN. CODE ANN . § 36-5-103(c) provides for the recovery by the plaintiff

spouse of reasonable attorney fees in the discretion of the Court. In Connors v.

Connors, 594 S.W.2d 672 (Tenn. 1981), the Supreme Court determined that

appropriate factors to be considered in fixing the amount of attorney fees were: (1) the time devoted to performing the legal service; (2) the time limitations imposed by

the circumstances; (3) the novelty and difficulty of the questions presented and the

requisite skill required; (4) the fee customarily charged in the locality for similar

services; the amount involved and the results obtained; (6) the experience,

reputation and ability of the lawyer performing the legal service. See also SUPREME

COURT RULE 38, CODE OF PROFESSIONAL CONDUCT .

The appellant argues that the trial court's holding that the charges of her

attorney "do not conform to the usual and ordinary time devoted to like cases by the

vast majority of the attorneys who practice at this bar," has no support in the record.

We agree. The appellee did nothing; he made no response; he filed no

countervailing affidavits; he offered no contrary evidence. Courts are fueled by

evidence, not by philosophy.

This is not to say that the trial judge was bound by the affidavit of the

appellant's attorney as to the issue of the reasonableness of the fee requested.

Quite the contrary, the trial judge is obviously bound to determine the

reasonableness of the requested fee. The fact that the appellant and her attorney

agreed upon an hourly rate of $100.00 and that 301 hours were reasonably

expended on the case is not binding on this Court. We recognize that a fully

developed record of the nature and quantities of the service rendered is not a

prerequisite to an award of attorney fees. Kahn v. Kahn, 756 S.W.2d 685 (Tenn.

1980), but a trial judge should not be cast in the position of seeming arbitrariness.

We are unable to ascertain on what basis the award of $1,250.00 was made; neither

are we able to determine whether the appellant was afforded a fair opportunity to

explain and enlarge upon the affidavit presented. As we have noted, the appellee

filed no countervailing affidavits, and no hearing was had on the issue of fees. The

issue of reasonableness should abide the reception of evidence, and the judgment is

accordingly reversed and the case remanded for trial of the issue. If the arguments

presented in appellee's brief were in evidentiary form, the trial judge would have had

at least some basis for his decision. Sherrod v. Wix, 849 S.W.2d 780 (Tenn. App.

1992). Costs are assessed to the appellee.

2 _______________________________ William H. Inman, Senior Judge

CONCUR:

_______________________________ Herschel P. Franks, Judge

_______________________________ Charles D. Susano, Jr., Judge

IN THE COURT OF APPEALS OF TENNESSEE EASTERN SECTION AT KNOXVILLE

ROBERT JOHN WILLIAMS, ) ) BLOUNT CIRCUIT Plaintiff/Appellee ) v. ) NO. 03A01-9511-CV-00400

3 ) MARY ELIZABETH (WILLIAMS) ) EVANS, ) ) REVERSED and Defendant/Appellant ) REMANDED

JUDGMENT

This appeal came on to be heard upon the record from the Circuit Court of

Blount County and briefs filed on behalf of the respective parties. Upon

consideration thereof, this court is of the opinion that there is reversible error in the

trial court's judgment.

It is therefore, ORDERED and ADJUDGED by this Court that the judgment of

the trial court is reversed. Costs are assessed to the appellee and its surety. The

case is remanded to the Circuit Court of Blount County for further proceedings in

accordance with the opinion of this Court and for collection of costs pursuant to

applicable law.

PER CURIAM